southdelta wateragency - california state … above, such conditional ... we suggest 45 minutes for...

Directors:

SOUTHDELTA WATERAGENCY 4255 PACIFIC A VENUE, SUITE 2 STOCKTON, CALIFORNIA 95207

TELEPHONE (209) 956-0150 FAX (209) 956-0154

E-MAIL [email protected]

Jerry Robinson, Chairman Robert K. Ferguson, Vice-Chairman Natalino Sacchetti Jack Alvarez Mary Hildebrand

Via E-Mail:

CWFhearin!:!@ waterhoard~.ca. 20v and California WaterFix Service List

January 22, 2016

Re: Comments Regarding Procedural Issues for the 28 January 2016 Pre-Hearing Conference for the California WaterFix Project

Dear Sir/Madam:

Counsel & Manager: John Herrick

The following are South Delta Water Agency, Central Delta Water Agency, Heritage Land Company Inc., Lafayette Ranch, Rudy M. Mussi Investment LP, and Bert Sacchetti Farms, Inc.'s ("SDWA") comments on procedural issues for the Change in Point of Diversion Petition/Hearing as requested by the State Water Resources Control Board. As set forth in more detail below, numerous procedural problems are present which preclude the Board from conducting the hearing as scheduled. The Board should therefor conduct a multi-day hearing/planning session in order to reasonably determine what needs to be done to process the Petition and the water quality certification and a time line for accomplishing the same.

1. The Notice states that Phase 2 of the Bay-Delta Water Quality Control Plan process will be conducted concurrently with the Petition. The Petition is a quasi-adjudicative action by the SWRCB while the Phase 2 of the Bay-Delta process is a quasi-legislative process. If the underlying issues and interests were unrelated, it might be possible to mix them together somehow. However, since the Bay-Delta process deals with developing objectives to protect beneficial uses and the Petition deals with conditions on the DWR and USBR to meet those objectives, combining them appears to be in conflict with the Racanelli decision. Racanelli specifically admonished the SWRCB to not combine and thus not confuse the two functions.

2. Per the Delta Reform Act, the Hearing on the Petition cannot proceed until the Bay-Delta process is completed. The notice incorrectly interprets the Act by confusing the direction to develop "non-regulatory flow criteria" with the precondition to approving the Petition by requiring any approval include "appropriate Delta flow criteria.'• The SWRCB did the former but has in no way developed the latter. There is no precedence for creating interim or temporary flow standards (and export standards and outflow standards, etc.) during a change

[email protected] Page- 2-January 22, 2016

in point of diversion proceeding. The SWRCB would be violating the requirements of both processes by combining the two. A change in point of diversion is to determine if a permitee can move its diversion without harming other beneficial uses, not to also determine what beneficial uses' need for protection separate from the change in diversion point.

3. A hearing cannot go forward without there first being a completed environmental review of the project which resolves the comments and complaints of that review. The Water Fix processes received thousands of comments pointing out deficiencies with the project. The project does not specify what its operations will be, and the current environmental reviews indicate and list the specific adverse impacts to third parties, beneficial uses and legal users. The SWRCB should first conduct the necessary hearing to determine what water is available under what conditions for export. It is doubtful that the current permits of DWR and USBR support current operations much less the unspecified operations of the Water Fix which seeks additional exports.

4. The Notice contemplates approving the Petition by requiring compliance with D-1641 with what ever new, interim fishery flows are concurrently developed. In addition to the objections above, such conditional approval based upon compliance with D-1641 is not supportable. The DWR and USBR are currently in violation of Order WR 2010-0002 (COO) which required them to submit a plan by which southern Delta salinity standards would be met. The deadline in that COO was January 1, 2013; over three years ago. No such plan has been developed much less submitted and violations of the D-1641 salinity standards are now common place. The current and lack of action by the projects to meet these 0-1641 obligations and the SWRCB's failure to enforce not only the permits but also the COO, legally preclude any approval of the Petition conditioned upon compliance with 0-1641.

5. The order of decision-making purposed in the Notice is inappropriate. Approval of the water quality certification cannot logically or legally precede the hearings on the Water Fix project, the change Petition or the finalization of the underlying environmental documents. In addition and as objected to in our Protest, it is inappropriate to delegate to the Executive Director the power to issue the water quality certification, especially based on information not included in the record. The process does not just suggest the approval is a foregone conclusion, the notice for all intents and purposes expressly states it. The underlying Water Fix project's own DEIR/S's specify how the project will degrade water quality and the EPA has stated in writing any project including the twin tunnels will violate the Clean Water Act.

6. The Hearing proposes cover not only fundamental changes to the operation of the Bay-Delta system, but also proposes to consider and temporarily determine radical flow, export and outflow changes. Such a monumental process cannot be done in a few months and still conform to basic due process requirements. SDW A et. al. are now beginning the process to depose the necessary witnesses who were involved with the production of the OEIRIS. It is likely that some environmental interests will want to depose fishery agency biologists as well.

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The current time line will hinder if not preclude the necessary depositions be done before the required submittal of testimony, and thus the Hearing cannot go forward as currently noticed.

7. The time frames for statements, direct examination and cross-examination are insufficient. We suggest 45 minutes for each party's opening statement regardless of any combined presentations. Direct, even with the witness required to summarized his/her testimony should be no less than 60 minutes. Cross should not be limited because witnesses are on a panel. Each examiner should be entitled to 90 minutes per witness as may necessary.

8. As covered in our Protest, there can be no requirement that parties submit terms and conditions (or other information). It is clear from the DEIRIS that the Water Fix will adversely affect fish and wildlife, in-Delta users and a variety of other interests. It is also contrary to various statutes and regulations. As such, there may not be any reasonable or enforceable conditions under which it might proceed. Requiring the parties to specify such appears to be a means by which the SWRCB will draft the final order "to mitigate" any adverse effects when approving the Petition.

9. Opening statements (written) should not be limited. If the DEIRIS reveals 50, 100 or more adverse impacts to legal users, a party should be able to cover each one adequately. There is no criteria by which one can predetermine a limit on the issues or relevant facts.

10. We join in CSPA et. al.' s objections to and correction of the SWRCB' s statement that "a responsible agency must assume that the CEQA document prepared by the lead agency is adequate." The SWRCB's own comments to the two EIRIS processes of the BDCP and Water Fix support CSPA's position.

We will attend the scheduled pre-Hearing Conference and look forward to discussing the above at that time.

Very truly yours,

~~L JHNHERRICK

Proof of Service Attached

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PROOF OF SERVICE

Waterfix Petition Hearing

I, Dayle Daniels, am over the age of eighteen years and employed in the County of San

Joaquin, California; I am not a party to this action; my business address is John Herrick, Attorney

at Law, 4255 Pacific Avenue, Suite 2, Stockton, CA 95207.

On January 22, 2016, January 22, 2016, I served a true copy of the attached:

South Delta Water Agency, Central Delta Water Agency, Heritage Land Company Inc., Lafayette

Ranch, Rudy M. Mussi Investment LP, and Bert Bacchetti Farms, Inc.'s ("SDWA") comments

on procedural issues for the Change in Point of Diversion Petition/Hearing as requested by the

State Water Resources Control Board.

Addressed to: SEE A TI ACHED LIST

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BY EMAIL [CCP § 101 0.6] Based on a court order or an agreement of the parties to accept service by e-mail, I caused the documents to be sent to the e-mail addresses indicated [above] or [in the attached Service List of Participants].

BY MAIL [CCP § 10 13] I enclosed the documents in a sealed envelope addressed to the following persons and placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with the business' practice for collecting and processing correspondence for mailing. On the same day that the correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage thereon fully prepaid at Stockton, California addressed as [above] or [in the attached Service List of Participants].

BY CERTIFIED MAIL: Certified mail receipt No. _______ [ ] (attached)/Return Receipt Requested

BY OVERNIGHT MAIL SERVICE [CCP §1013(c)] I enclosed the documents in a sealed envelope provided by an overnight delivery carrier and addressed it to the persons identified below. I placed said envelope for collection at a regularly utilized drop box of the overnight carrier.

BY FACSIMILE: Based on prior consent, I caused the documents to be sent to the following persons via telecopier/facsimile machine a true copy thereof to the parties indicated [above] or [in the attached Service List of Participants]. Pursuant to California Rules of Court, rule 2005(i), I caused the machine to print a transmission record of the transmission, a copy of which is attached to this declaration. The facsimile machine I used complied with California Rules of Court, rule 2003(3). [C.R.C. §2008 & § 2003(3)]

BY PERSONAL SERVICE [CCP §415.10] I caused such envelope to be delivered by hand to the offices of the persons identified [above] or [in the attached Service List of Participants].

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PROOF OF SERVICE

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I declare under penalty of perjury under the laws of the State of California that the

foregoing is true and correct.

Executed on January 22, 2016, at Stockton, California.

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PROOF OF SERVICE

LIST OF PARTICIPANTS California Waterfix Petition Hearing

(Scheduled to Commence on April 7, 2016)

REVISED SERVICE LIST (Dated January 22, 2016)

Table ~- Service List of Parties to Exchange Information (Parties Participating in Direct Testimony, Cross .. Examination or Rebuttal)

Parties Participating in Part I (May also be Parties in Part II)

THE FOLLOWING PARTIES MUST BE SERVED WITH WRITTEN TESTIMONY, EXHIBITS AND OTHER DOCUMENTS. (Note: The parties listed below agreed to accept electronic service, pursuant to the rules specified in the hearing notice.)

Authorized Authorized Email Address of Authorized

Party Representative/ Representative's Representative/ Attorney

Attorney Affiliation California Department of

James Mizell [email protected] Water Resources U.S. Department of the Amy Aufdemberge,

[email protected] Interior Esq. Sacramento County

Aaron Ferguson Somach, Simmons &

[email protected] Water Agency Dunn Carmichael Water

Aaron Ferguson Somach, Simmons &

[email protected] District, The Dunn

City of Roseville, The Alan Lilly & Ryan Bartkiewicz, Kronick & [email protected] Bezerra Shanahan [email protected]

Sacramento Suburban Alan Lilly & Ryan Bartkiewicz, Kronick & [email protected] Water District Bezerra Shanahan [email protected]

San Juan Water District Alan Lilly & Ryan Bartkiewicz, Kronick & [email protected]; Bezerra Shanahan [email protected]

City of Folsom, The Alan Lilly & Ryan Bartkiewicz, Kronick & [email protected]; Bezerra Shanahan [email protected]

Yuba County Water Alan Lilly & Ryan Bartkiewicz, Kronick & [email protected]; Agency Bezerra Shanahan, P.C. [email protected] South Valley Water

Alex M Peltzer Peltzer & Richardson,

[email protected] Association, et al. LC Biggs-West Gridley

Andrew M. Hitchings Somach, Simmons &

[email protected]; Water District Dunn, PC

Glenn-Colusa Irrigation Andrew M. Hitchings

Somach, Simmons & [email protected]

District (GCID) Dunn

North Delta Cares Anna Swenson [email protected]

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Barbara [email protected];

Restore the Delta Parilla & Tim Restore the Delta Stroshane

[email protected]

Barbara Daly Barbara Daly [email protected]

SoiAgra Corp. Barry Sgarrella, CEO [email protected]

California Delta Chambers & Visitors Bill Wells [email protected] Bureau

Steamboat Resort Brad & Emily [email protected]; Pappalardo [email protected]

Brett G. Baker Brett G. Baker [email protected] The Environmental Justice Coalition for Colin Bailey [email protected] Water Placer County Water

Daniel Kelly Somach Simmons &

[email protected] Agency Dunn

City of Brentwood, The David Aladjem Downey Brand LLP [email protected]

Reclamation District No. David Aladjem Downey Brand LLP [email protected]

800 (Byron Tract) Friant North Authority David Orth [email protected] Deirdre Des Jardins Deirdre Des Jardins [email protected]

Nevada Irrigation Minasian, Meith,

Dustin C. Cooper Soares, Sexton & [email protected] District

CooperLLP

Butte Water District Minasian, Meith,

(BWD) Dustin C. Cooper Soares, Sexton & [email protected]

Cooper, LLP

Richvale Irrigation Minasian, Meith,

Dustin C. Cooper Soares, Sexton & [email protected] District (RID) Cooper. LLP

Anderson - Cottonwood Minasian, Meith,

Irrigation District Dustin C. Cooper Soares, Sexton & [email protected]

Cooper, LLP

Plumas Mutual Water Minasian, Meith,

Company Dustin C. Cooper Soares, Sexton & [email protected]

Cooper, LLP

Reclamation District Minasian, Meith,

1004 Dustin C. Cooper Soares, Sexton & [email protected]

Cooper, LLP South Feather Water

Minasian, Meith, and Power Agency:

Dustin C. Cooper Soares, Sexton & [email protected] Mike Glaze, SFWPA General Manager

Cooper, LLP

Western Canal Water Minasian, Meith,

District Dustin C. Cooper Soares, Sexton & [email protected]

Cooper. LLP

Paradise Irrigation Minasian, Meith,

Dustin C. Cooper Soares, Sexton & [email protected] District Cooper, LLP

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[email protected]; [email protected];

[email protected]; [email protected];

Fennemore Craig, [email protected];

Friant Water Authority & Lauren Caster, [email protected]; Gregory Adams, [email protected];

Members Jennifer Buckman, [email protected]; and 13 others [email protected];

[email protected]; [email protected]; roland@ssjmud .org;

[email protected]

East Bay Municipal Fred Etheridge & [email protected]; Utility District Jonathan Salmon [email protected] North San Joaquin Water Conservation Jennifer Spaletta Spaletta Law jennifer@spalettalaw .com District

Joe Robinson I Martha Office of the City

[email protected] City of Sacramento

Lennihan Attorney I Lennihan

[email protected] Law

Central Delta Water Agency, South Delta Water Agency (Delta Agencies), Lafayette John Herrick, Esq.

[email protected]; [email protected] Ranch, Heritage Lands and Dean Ruiz, Esq. Inc., Mark Bachetti Farms and Rudy Mussi Investments L.P.

City of Stockton John luebberke & [email protected]; Tara Mazzanti [email protected]

San Luis & Delta-Mendota Water Jon Rubin [email protected] Authority Stockton East Water

Kama E. Harrigfeld [email protected] District North Delta Water Agency & Member Kevin O'Brien Downey Brand LLP [email protected] Districts

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Brannan-Andrus Levee Maintenance District; Reclamation District 407; Reclamation District 2067; Reclamation District

Kevin O'Brien & David [email protected] 317; Reclamation Downey Brand LLP District 551 ;

AJadjem [email protected]

Reclamation District 563; Reclamation District 150; Reclamation District 2098 Sacramento Valley Kevin O'Brien & David

Downey Brand LLP [email protected]

Group Aladjem [email protected]

County of San Joaquin, San Joaquin County Flood Control and Water Conservation Kurtis Keller Neumiller & Beardslee [email protected] District, and Mokelumne River Water and Power Authority

County of Colusa, The Marcos Kropf [email protected]

Save the California Delta Alliance; Janet & Michael McCleary;

Michael Brodsky Law Offices of Michael

[email protected] Frank Morgan; and A. Brodsky Captain Morgan's Delta Adventures, LLC

Islands, Inc Michael J. Van Zandt Hanson Bridgett, LLP [email protected] California Sportfishing Michael Jackson, [email protected] Protection Alliance, Bill Jennings,

Law Offices of Michael [email protected]

California Water Impact Chris Shutes, Jackson

[email protected] Network, and Barbara Vlamis, and [email protected] AquAIIiance Carolee Krieger caroleekrieger7 @gmail.com Snug Harbor Resorts,

Nicole S Suard [email protected] LLC Local Agencies of the

Osha Meserve [email protected] North Delta Bogle Vineyards/Delta Watershed Landowner Osha Meserve [email protected] Coalition Diablo Vineyards and Brad Lange/Delta

Osha Meserve [email protected] Watershed Landowner Coalition

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Stillwater Orchards/Delta

Osha Meserve [email protected] Watershed Landowner Coalition Patrick Porgans Patrick Porgans [email protected]

San Joaquin River Minasian, Meith, Exchange Contractors Paul Minasian Soares, Sexton & [email protected] Water Authority Cooper, LLP

Coalition for a Paul S. Weiland [email protected]

Sustainable Delta, The

Sacramento Regional Somach, Simmons &

County Sanitation Paul Simmons Dunn, PC

[email protected] District Westlands Water

Philip A Williams [email protected] District County of Yolo Philip J. Pogledich [email protected] City of Antioch Ron Bernal City of Antioch [email protected] Contra Costa County

[email protected]; and Contra Costa Ryan Hernandez

[email protected] County Water Agency Contra Costa Water Scott Shapiro and

Downey Brand LLP [email protected];

District Kevin O'Brien [email protected] Daniel Wilson Daniel Wilson [email protected]

State Water Contractors Stefanie Morris [email protected]

Pacific Coast Federation of Fishermen's Associations and Stephan C. Volker Volker law [email protected] Institute for Fisheries Resources

Tehama-Colusa Canal Steven Saxton, [email protected]

Authority & water service contractors in its

Meredith Nikkel & J. Downey Brand [email protected]

sevice area Mark Atlas [email protected]

The San Joaquin Tributaries Authority (SJTA), Merced Irrigation District, Modesto Irrigation District, Oakdale Tim 0' Laughlin & O'Laughlin & Paris, [email protected]; Irrigation District, South Valerie Kincaid LLP [email protected] San Joaquin Irrigation District, Turlock Irrigation District, and City and County of San Francisco

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Water Forum, The Tom Gohring [email protected] Earth justice Trent W. Orr [email protected] County of Solano William Emlen [email protected]

THE FOLLOWING PARTY MUST BE SERVED WITH WRITTEN TESTIMONY, EXHIBITS AND OTHER DOCUMENTS. (Note: The party listed below must be served a hard copy, pursuant to the rules specified in the hearing notice.)

Authorized Mailing Address of Authorized Representative/

Party Representative/ Attorney

Attorney

Clifton Court, L.P. Suzanne Womack & 3619 Land Park Drive Sheldon Moore Sacramento, CA 95818

Parties Participating in Part II Only (Must also be Served in Part I)

THE FOLLOWING PARTIES MUST BE SERVED WITH WRITTEN TESTIMONY, EXHIBITS AND OTHER DOCUMENTS. (Note: The parties listed below agreed to accept electronic service, pursuant to the rules specified in the hearing notice.)


Party Representative/ Representative's Representative/ Attorney

Attorney Affiliation County of Sacramento,

Aaron Ferguson Somach Simmons &

[email protected] The Dunn Friends of the River E. Robert Wright [email protected]

Environmental Council Brenda Rose [email protected]

of Sacramento

Trout Unlimited Brian Johnson [email protected] California Department of

Carl Wilcox [email protected] Fish and Wildlife Environmental Water

Conner Everts [email protected] Caucus

Sierra Club California E. Robert Wright & [email protected]; Kyle Jones [email protected]

Planning & Jonas Minton [email protected]

Conservation League

Natural Resources [email protected]; [email protected]; Defense Council, The

Kate Poole Natural Resources [email protected];

Bay Institute, and Defense Council [email protected]; Defenders of Wildlife [email protected]

SAVE OUR SANDHILL Mike Savino [email protected]

CRANES Friends of the San

Mitch Avalon [email protected] Francisco Estuary

Friends of Stone Lakes Osha Meserve

[email protected]; National Wildlife Refuge [email protected]

American Rivers, INC Steve Rothert [email protected]

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Table 2 - Interested Persons (Persons Intending to Make Policy Statements Only)

PARTIES IN TABLE 1 ARE NOT REQUIRED TO SERVE THE FOLLOWING INTERESTED PERSONS WITH WRITTEN TESTIMONY, EXHIBITS, AND OTHER DOCUMENTS

Interested Persons Participating in Part I (May also be Interested Persons in Part II)


Interested Person Representative/ Representative's Representative/ Attorney

Attorney Affiliation Castaic Lake Water

Matthew Stone [email protected] Agency Central Valley Clean

Debbie Webster [email protected] Water Association Coachella Valley Water

Robert C Cheng [email protected] District Desert Water Agency Mark Krause [email protected] Kern County Water

Curtis Creel [email protected],

Agency [email protected] Metropolitan Water District of Southern Rebecca Sheehan [email protected] California Mojave Water Agency Kirby Brill [email protected] North State Water David J. Guy, Northern California

[email protected] Alliance President Water Association Partnership for Sound Craig S.J. Johns, Science in Program Manager, [email protected] Environmental Policy PSSEP

San Bernardino Valley Douglas Headrick [email protected]

Municipal Water District

Paul Gosselin, Butte County Department of

Paul Gosselin pgosselin@buttecounty .net Water and Resource Conservation San Gorgonio Pass

Jeff Davis [email protected] Water Agency Santa Clara Valley

Erick Soderlund [email protected] Water District Terri Crain Terri Crain [email protected]

Tulare Lake Basin Mark Gilkey [email protected]

Water Storage District

U.S. EPA Region 9 Tomas Torres torres. [email protected] Zone 7 Water Agency J. Duerig jduerig@zone 7water.com City of Chico, The Erik Gustafson [email protected]

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Rural County Representatives of Kathy Mannion [email protected] California

SEMILLAS (Stockton Educational Movement

Motecuzoma Sanchez [email protected] in language Literacy and Scholarship)

Interested Persons Participating in Part II Only Authorized Authorized

Email Address of Authorized Interested Person Representative/ Representative's

Representative/ Attorney Attorney Affiliation

African American Brandle Owusu-

African American Chamber of Commerce

Spencer Chamber of Commerce [email protected]

of San Joaquin County of San Joaquin County

Asian Pacific Self-Development and Hengsothea Ung [email protected] Residential Association

Assemblymember Gustavo Medina [email protected]

Susan Eggman Braceros del Delta Luis Magalia [email protected] Cafe Coop Esperanza Vielma [email protected] California Striped Bass

Jim Cox [email protected] Association

California Student Ryan Camero [email protected]

Sustainability Coalition

Catholic Charities, Katelyn Roedner [email protected]

Diocese of Stockton Sutter Central Valley Asian

Cynthia lau [email protected] Chamber Earth law Center linda Sheehan [email protected] Frank l Ruhstaller Frankl Ruhstaller [email protected] Golden Gate Salmon

John McManus [email protected] Assoc

Greater Stockton Douglas W. Wilhoit, [email protected] Chamber of Commerce Jr.

Joan Buchanan Joan Buchanan [email protected]

lao Family Community GerVang [email protected]

Empowerment

Lower Sherman Island Duck Hunters Roger Mammon [email protected] Association Michael Frost Michael Frost [email protected] National Marine

Ryan Wulff [email protected] Fisheries Service Rogene Reynolds Rogene Reynolds [email protected]

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Ronald Forbes, Delta Ronald Forbes [email protected]

F!y_ Fishers San Francisco

George Torgun [email protected] Baykeeper

Senator Cathleen [email protected];

Senator Cathleen Galgiani and Staff [email protected];

Galgiani Trent Hager & Marian [email protected]

Norris Social Media Moms Martha Vielma [email protected] Stockton Downtown

Karl E Nate Knodt [email protected] Comeback Club Stockton Vegan &

Jennifer Patterson [email protected] V~etarians

Visit Stockton WesRhea [email protected]

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southdelta wateragency - california state … above, such conditional ... we suggest 45 minutes for...

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